Protection of Traditional Knowledge and Cultural Expressions Act

Section 1. Short title Section This Act may be cited as the Protection of Traditional Knowledge and Cultural Expressions Act.

Section 2. Interpretation Section common ancestry;

Section 3. Guiding principles Section In the performance of the functions and exercise of powers under this Act, every person dealing with matters relating to traditional knowledge or cultural expressions shall be guided by the national values and principles of governance set out in Article 10 of the Constitution.

Section 4. Responsibility of county governments Section the primary registration of traditional knowledge and cultural expressions within a county for the purposes of recognition under this Act;

Section 5. Responsibilities of the national government Section the establishment and maintenance of the Repository at the Kenya Copyright Board;

Section 6. Protection criteria for traditional knowledge Section generated, preserved and transmitted from one generation to another, within a community, for economic, ritual, narrative, decorative or recreational purposes;

Section 7. Formalities relating to protection of traditional knowledge Section 7(1) Protection of traditional knowledge shall not be subject to any formality. Section 7(2) Notwithstanding subsection (1), county governments shall collect information, document and register traditional knowledge within the respective counties for the purposes of recognition. Section 7(3) The Registration under subsection (2) shall be undertaken willingly by the owners of traditional knowledge upon obtaining prior informed consent but shall not require the public disclosure of the traditional knowledge concerned. Section 7(4) Where a community in Kenya shares traditional knowledge with a community outside Kenya, the national and county government shall register the owners of the traditional knowledge in Kenya and maintain relevant records. Section 7(5) Where more than one community in the same or different counties share the same traditional knowledge, respective county governments shall register the owners of the traditional knowledge and maintain relevant records. Section 7(6) Where concurrent claims arise from different communities, the Kenya Copyright Board or county government shall, while determi...

Section 8. Maintenance of registers Section 8(1) Every county government shall, establish and maintain a register which shall contain information relating to traditional knowledge and cultural expressions collected and documented by the county government during the registration process. Section 8(2) The registers maintained under subsection (2) may relate to specific forms of protection, and shall not compromise the status of undisclosed traditional knowledge or the interests of holders of traditional knowledge that relate to the undisclosed elements of their knowledge. Section 8(3) The national government shall, in consultation with the relevant county government establish and maintain a comprehensive Traditional Knowledge Digital Repository which shall contain information relating to traditional knowledge and cultural expressions that have been documented and registered by county governments. Section 8(4) Notwithstanding subsection (1), in the interests of transparency, evidence and the preservation of traditional knowledge, the national government and the lead agencies shall, where appropriate and subject to the relevant policies, laws and procedures and considering the needs an...

Section 9. Right to protection Section The owners and holders of traditional knowledge shall have the right to protection of that knowledge.

Section 10. Rights conferred to holders of traditional knowledge Section 10(1)(a) authorize the exploitation of their traditional knowledge; and Section 10(1)(b) prevent any person from exploiting their traditional knowledge without their prior informed consent. Section 10(2) In addition to all other rights, remedies and action available, the owners shall have the right to institute legal proceedings against any person who exploits traditional knowledge without the owner's permission. Section 10(3) Every community shall make and adopt its community rules prescribing the procedures for the authorization of the exploitation of their traditional knowledge. Section 10(4) The rules shall be submitted to the county government during the registration of traditional knowledge.

Section 11. Recognition of traditional knowledge and cultural expression owners Section A person who uses traditional knowledge or cultural expressions beyond its traditional context shall acknowledge the owner of the knowledge, indicate the source of the knowledge or expression and where possible, the origin of the knowledge or expression, and use such knowledge or expression in a manner that respects the cultural values of the holders.

Section 12. Compulsory licence Section 12(1) Where protected traditional knowledge is not being sufficiently exploited by the owner or rights holder, or where the owner or holder of rights in traditional knowledge refuses to grant licenses for exploitation, the Cabinet Secretary may, with prior informed consent of the owners, grant a compulsory licence for exploitation subject to Article 40(3)(b) of the Constitution. Section 12(2) In the absence of an agreement between the parties on an appropriate amount of compensation for the compulsory licence, a court of competent jurisdiction shall on the application of the parties determine the compensation. Section 12(3) The Cabinet Secretary may, in the case of a dispute where there is no agreement between the parties, refer the matter for determination through alternative dispute resolution mechanisms. Section 12(4) The Cabinet Secretary shall make regulations prescribing the criteria and conditions for the grant of a compulsory licence.

Section 13. Duration of protection of traditional knowledge Section Traditional knowledge shall be protected for so long as the knowledge fulfils the protection criteria referred to under section 6 .

Section 14. Protection criteria of cultural expressions Section the products of creative and cumulative intellectual activity, including collective creativity or individual creativity where the identity of the individual is unknown;

Section 15. Formalities relating to cultural expressions Section 15(1) The protection of cultural expressions shall not be subject to any formality. Section 15(2) Notwithstanding subsection (1), county governments shall collect information, document and register cultural expressions within the respective counties for the purposes of recognition. Section 15(3) The registration under subsection (2) shall be undertaken willingly by the owners of cultural expressions upon obtaining prior informed consent but shall not require the public disclosure of the cultural expressions concerned. Section 15(4) Where a community in Kenya shares cultural expressions with a community outside Kenya, the national and county government shall register the owners of the cultural expression in Kenya and maintain relevant records. Section 15(5) Where more than one community in the same or different counties share the same cultural expressions, respective county governments shall register the owners of the cultural expressions and maintain relevant records. Section 15(6) Where concurrent claims arise from different communities, national government or county government shall, while determining the claim, con...

Section 16. Right of protection Section The owners and holders of cultural expressions shall have the right to protection of those expressions.

Section 17. Duration of protection of cultural expressions Section Cultural expressions shall be protected against all acts of misappropriation, misuse, unlawful access or exploitation for as long as the cultural expressions fulfil the protection criteria set out in section 14 .

Section 18. Protection of traditional knowledge and cultural expressions against unlawful acts Section 18(1) A person shall not, in any way, misappropriate, misuse, abuse, unfairly, inequitably or unlawfully access and exploit traditional knowledge and cultural expressions. Section 18(2)(a) the reproduction of the traditional knowledge or cultural expressions; Section 18(2)(b) the publication of the traditional knowledge or cultural expressions; Section 18(2)(c) the performance or display of the traditional knowledge or cultural expressions in public; Section 18(2)(d) the broadcast of the traditional knowledge or cultural expressions to the public by radio, television, satellite, cable or any other means of communication; Section 18(2)(e) the translation, adaption, arrangement, transformation or modification of the traditional knowledge or cultural expressions; Section 18(2)(f) the fixation of the traditional knowledge or cultural expressions through any process, including making a photograph, film or sound recording; Section 18(2)(g) the availing online or electronic transmission to the public (whether over a path or a combination of paths, or both) traditional knowledge or cultur...

Section 19. Exceptions and limitations Section 19(1)(a) not restrict or hinder the normal usage, development, exchange, dissemination and transmission of traditional knowledge or cultural expressions by members of a particular community within the traditional and in accordance with the customary law and practices of that community; Section 19(1)(b) extend only to uses of traditional knowledge or cultural expressions taking place outside their traditional or customary context, whether for commercial gain or not; and Section 19(1)(c) be subject to such other exceptions as may be necessary to address the needs of non-commercial use, including teaching and research for educational purposes, personal or private use, criticism or review, reporting of current events, use in the course of legal proceedings, the making of recordings and reproductions of traditional knowledge or cultural expressions for inclusion in an archive or inventory exclusively for the purposes of safeguarding knowledge or cultural heritage, and incidental uses. Section 19(2) A user of traditional knowledge or cultural expressions shall obtain prior informed consent and sufficiently acknowledge the owners by expressly...

Section 20. Derivative works Section 20(1) Any copyright, trademark, patent, industrial design, geographical indication or other intellectual property right that exists in relation to a derivative work shall vest in the creator of the work as provided by the relevant intellectual property law. Section 20(2) Where a derivative work that is based on traditional knowledge or cultural expressions is to be used for a commercial or industrial purpose, an authorized user agreement shall be prepared between the rights holder and the authorised user. Section 20(3)(a) contain a benefit sharing arrangement that provides for fair equitable monetary or non- monetary compensation to the right holders; Section 20(3)(b) provide for identification and disclosure of the traditional knowledge or cultural expressions on which the derivative work based by mentioning the holders or the geographical place from which it originated; and Section 20(3)(c) state that the traditional knowledge or cultural expressions in the derived work will not be subject to derogatory treatment.

Section 21. Meaning of moral rights Section 21(1) The owners of traditional knowledge or cultural expressions shall be holders of the moral rights in the traditional knowledge or cultural expressions. Section 21(2)(a) the right of attribution of ownership or paternity in relation to their traditional knowledge and cultural expressions; Section 21(2)(b) the right not to have ownership of traditional knowledge or cultural expressions falsely attributed to them; and Section 21(2)(c) the right not to have their traditional knowledge and cultural expressions subject to derogatory treatment including any act or omission that results in a material distortion, mutilation or alteration of the traditional knowledge or cultural expressions that is prejudicial to the honor or reputation of the traditional owners, or the integrity of the traditional knowledge or cultural expressions; and Section 21(2)(d) the right to protection from false and misleading claims to authenticity and origin. Section 21(3) The moral rights of traditional owners in their traditional knowledge and cultural expressions shall exist independently of their cultural rights. Section 21(4) The moral rights shall continue in...

Section 22. Assignment and licensing Section 22(1) The owners of traditional knowledge or cultural expressions rights shall have the right to assign and conclude licensing agreements. Section 22(2) Despite subsection (1), traditional knowledge or cultural expressions belonging to a local or traditional community shall not be assigned without the authorization of the custodian of the local or traditional community. Section 22(3) The holders of traditional knowledge or cultural expressions rights shall grant access, authorizations, assignments or licenses in respect of protected traditional knowledge or cultural expressions in writing and copy submitted to the Cabinet Secretary and the respective county executive committee member in charge of matters relating to traditional knowledge and culture. Section 22(4) Access, authorizations, assignments or licenses in respect of protected traditional knowledge or cultural expressions that have not been granted in writing shall have no effect. Section 22(5) The parties to a licensing agreement may seek the advice of the Cabinet Secretary when drawing up a document for the purpose of this section. Section 22(6) The Cabinet Secretary shall keep...

Section 23. Additional rights Section 23(1) The cultural rights in traditional knowledge or cultural expressions shall be in addition to any rights that may subsist under any law relating to copyright, trademarks, patents, designs or other intellectual property and shall not in any way affect the subsisting rights. Section 23(2) These are the rights to maintain, control, protect and develop their cultural heritage, traditional knowledge and cultural expressions as well their manifestations.

Section 24. Equitable benefit sharing rights Section 24(1) The protection of owners and holders of traditional knowledge or cultural expressions shall include the right to fair and equitable sharing of benefits arising from the commercial or industrial use of their knowledge, to be determined by mutual agreement between the parties. Section 24(2) The right to equitable remuneration might extend to non-monetary benefits, such as contributions to community development, depending on the material needs and cultural preferences expressed by the communities themselves. Section 24(3) The Cabinet Secretary may make regulations prescribing the matters that should be included in a benefit sharing arrangement.

Section 25. Authorization for use of Traditional knowledge and cultural expressions Section 25(1)(a) grant authorization for the exploitation and use of their traditional knowledge and cultural expressions; or Section 25(1)(b) after necessary consultations, authorize the national government, county government or any other person to exploit their traditional knowledge and cultural expressions, on their behalf. Section 25(2) The owners of traditional knowledge and cultural expressions shall notify the Cabinet Secretary, in writing, of every authorization agreements they enter into. Section 25(3)(a) they shall not grant the authorization before undertaking appropriate and documented consultations with the members of the communities, in accordance with their traditional processes for decision-making and public affairs management; Section 25(3)(b) the authorization shall comply with the scope of protection provided for the traditional knowledge or cultural expressions concerned and shall provide for the equitable sharing of the benefits arising from their exploitation and use; Section 25(3)(c) the uncertainties or disputes relating to the determination of the communities should be invol...

Section 26. Access to traditional knowledge associated with genetic resources Section 26(1) An authorization granted under this Act to access protected traditional knowledge associated with genetic resources shall not be an authorization to access the associated genetic resources. Section 26(2) The access to associated genetic resources shall be a subject matter of relevant legislations relating to genetic resources.

Section 27. Application for consent Section 27(1) Where the Cabinet Secretary is satisfied that there is need for the grant of a compulsory licence under section 12 , a prospective user of traditional knowledge or cultural expressions for a non-customary use, whether for a commercial or industrial nature or not, shall apply to the Cabinet Secretary for the consent of the holders for the use of the traditional knowledge or cultural expressions. Section 27(2)(a) be in the prescribed form; Section 27(2)(b) specify the manner in which the applicant proposes to use the traditional knowledge or cultural expressions; Section 27(2)(c) clearly state the purpose for which that use is intended; and Section 27(2)(d) be accompanied by the prescribed fee. Section 27(3) The consent shall be obtained on the basis of mutually agreed terms prescribed in the regulations made under this Act. Section 27(4) Despite subsection (2) applications for access to and documentation of traditional knowledge or cultural expressions by the Cabinet Secretary or relevant County Executive Committee member shall be free of charge and may be subject to sharing of financial and other benefits arising from the use of the...

Section 28. Public consultation Section 28(1)(a) give a copy of the application for consent to the holders of the traditional knowledge or cultural expressions to which the application relates; Section 28(1)(b) publish a notification of the application in a newspaper with nationwide circulation stating the website and other public information centres provided in sections 95 and 119 of the County Governments Act (Cap. 265), where the interested persons may obtain a copy of the application. Section 28(2) Any person who claims to be a holder of the traditional knowledge or cultural expressions, to which the application relates shall, in writing, make a representation to the Cabinet Secretary within twenty-eight days after the application is published or broadcasted, whichever is the later. Section 28(3) The Cabinet Secretary shall record in writing the details of any written representation given under subsection (2).

Section 29. Identification of holders Section 29(1) Where the Cabinet Secretary is satisfied that he or she has identified all of the holders of the traditional knowledge or cultural expressions who are required to give consent before consent can be granted under section 25 , the Cabinet Secretary make a written determination of an application for consent under section 25 containing the details identifying the holders. Section 29(2) The Cabinet Secretary shall publish a notification of the application in a newspaper with nationwide circulation stating the website and other public information centres provided in sections 95 and 119 of the County Governments Act (Cap. 265), where the interested persons may obtain a copy of the application.

Section 30. Uncertainty or dispute of ownership Section 30(1) Where the Cabinet Secretary is not satisfied that he or she has identified all of the holders or that there is a dispute about ownership of the rights, the Cabinet Secretary shall refer the matter to the parties for resolution in accordance with customary laws and practices or such other means as are agreed to by the parties. Section 30(2) Where a dispute has been resolved and all of the right holders have been identified in accordance with customary laws and practices or the means agreed by the parties, the holders shall inform the Cabinet Secretary of the resolution and identification, and the Authority shall record the determination containing and the details as to identify the holders. Section 30(3) The Cabinet Secretary shall publish a notification of the application in a newspaper with nationwide circulation stating the website and other public information centres provided in sections 95 and 119 of the County Governments Act (Cap. 265), where the interested persons may obtain a copy of the application.

Section 31. No claim to ownership Section 31(1) Where a county government is satisfied that there is no owner or agreement about ownership and no owner can be identified, the county government shall refer the matter to the national government for determination. Section 31(2) Where the national government determines that there is no owner and the county of origin is known, the county government shall hold the rights to the traditional knowledge or cultural expressions on behalf of the owners. Section 31(3) Where the national government determines that there is no owner and the county of origin is known, the county government shall hold the rights to the traditional knowledge or cultural expressions on behalf of the people of that county. Section 31(4) Where the national government determines that the county of origin is not known, the national government shall hold the rights to the traditional knowledge or cultural expressions on behalf of the people of Kenya. Section 31(5) Where the national or county government holds the rights under subsection (2) and (3), the governments may enter into an authorized user agreement for use and any monetary or non-monetary benefits arising under...

Section 32. Authorized user agreements Section 32(1)(a) reject the application; or Section 32(1)(b) accept the application and enter into negotiations for a written authorized user agreement in relation to the application within a specified period of sixty days. Section 32(2) The holders shall inform the national government and the county government, in writing, of their decision and the Authority shall inform the applicant of the holders' decision, in writing.

Section 33. User agreements Section 33(1) The owners of traditional knowledge or cultural expressions shall, before entering into an authorized user agreement, consult the members of the community on the proposed terms and conditions of the agreement. Section 33(2) The Cabinet Secretary shall make regulations prescribing the matters that should be included in a user agreement and the procedures to be followed before a user agreement is enter into.

Section 34. Terms and conditions of user agreement Section the sharing of financial and other benefits arising from the use of the traditional knowledge or cultural expressions;

Section 35. Authorized user agreement and prior informed consent Section 35(1) Where a party cannot read or write, or suffers from any physical disability, a verbal agreement may be recorded via video or other communication formats or technologies may be used. Section 35(2) Agreements not registered by the Cabinet Secretary shall be null and void. Section 35(3) In the case of shared intellectual property rights between the holders and the users, such rights shall not be transferred except with the authorization of the Cabinet Secretary. Section 35(4) The intention to transfer such rights shall be communicated in writing or in such a manner as may be prescribed by the Cabinet Secretary. Section 35(5) Upon receipt of the application the Cabinet Secretary may, in consultation with the relevant communities grant approval subject to the terms and conditions it deems fit, including imposition of charges by way of royalties or may for reasons recorded in writing reject the application. Section 35(6) Applications for the transfer of intellectual property rights, in or outside Kenya based on traditional knowledge and cultural expressions obtained in Kenya shall require the prior approval of...

Section 36. Obtained consent from traditional knowledge holders Section 36(1) A prospective user of traditional knowledge or cultural expressions may obtain the prior informed consent of the holders, under section 25 , without applying to the Cabinet Secretary. Section 36(2) The prospective user shall inform the Cabinet Secretary that the prospective user has sought the consent of the holders and provide the Cabinet Secretary with a copy of the proposed authorized user agreement between the prospective user and the holders for comment, and advice. Section 36(3) The prospective user shall provide a copy of the signed authorized user agreement to the Cabinet Secretary, for entry into the register, within thirty days of the agreement coming into force. Section 36(4) If a prospective user and the holders enter into an authorized user agreement, the holders are deemed to have given their prior and informed consent to the proposed use. Section 36(5) The failure to provide the agreement under subsection (3) may render the agreement void.

Section 37. Offences and penalties Section 37(1)(a) has in possession or control in the course of trade; Section 37(1)(b) manufactures, produces or makes in the course of trade; Section 37(1)(c) sells, barters or exchanges, offers or exposes for sale, disposes, distributes, hires out; Section 37(1)(d) exposes or exhibits for the purposes of trade; Section 37(1)(e) imports into, transit through, trans-ships within or exports from Kenya, except for private, domestic, industrial and commercial use of the importer or exporter, as the case may be; or Section 37(1)(f) in any manner develops any goods or service using unauthorized traditional knowledge or cultural expressions in the course of trade, Section 37(2) A person who without authorization makes a non-customary use of traditional knowledge or cultural expressions whether or not such use is of a commercial or industrial nature, commits an offence and is liable, on conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding five years or both. Section 37(3) A person who fails to acknowledge the source of the traditional knowledge or cultural expression commits an offence and is liable, on convi...

Section 38. Civil action Section 38(1) The holders of traditional knowledge and cultural expressions may institute legal proceedings in a court of competent jurisdiction seeking any action provided in section 39 against any person who carries out any of the acts mentioned in section 18 , without the holder's prior informed consent. Section 38(2)(a) makes a non-customary use of traditional knowledge or cultural expression whether or not such use is of a commercial nature without the permission of the owner; or Section 38(2)(b) acts in a manner or commits an omission that infringes the moral rights of the traditional owners of that traditional knowledge or cultural expression,

Section 39. Civil remedies Section 39(1)(a) grant an injunction; Section 39(1)(b) award damages for loss resulting from the unauthorized use; Section 39(1)(c) make a declaration that the cultural rights of the holders have been contravened; Section 39(1)(d) order that the infringer make a public apology for the contravention; Section 39(1)(e) order that any false attribution of ownership, or derogatory treatment, of the traditional knowledge or cultural expressions cease or be reversed; Section 39(1)(f) order the account for profits made by the infringer in exploiting the infringing articles; Section 39(1)(g) order the forfeiture of profits made by the infringer in exploiting the infringing articles to the owner; Section 39(1)(h) order the delivery up or forfeiture to the holders of articles made in contravention of their rights, as provided for under this Act; Section 39(1)(i) order the seizure of any object made, imported or exported contrary to this Act; Section 39(1)(j) order the revocation or invalidation of intellectual property rights inappropriately acquired over traditional knowledge or cultural expressions or derivatives thereof; or Section 39(1)(k) make such other orders...

Section 40. Other mechanisms to resolve disputes Section mediation;

Section 41. Other rights and remedies Section The rights and remedies provided in this Act shall not affect any other rights of action or remedies provided under other written laws.

Section 42. Transition Section 42(1) Upon the commencement of this Act, any person who, before the commencement of this Act, was lawfully involved in the exploitation and dissemination of traditional knowledge shall be required to comply with the provisions of this Act within twelve months, subject to equitable treatment of the rights acquired by third parties in good faith. Section 42(2) The continued use of cultural expression rights acquired before the commencement of this Act shall, within twelve months of the commencement of this Act, be reviewed and harmonised with the provisions of this Act, subject to equitable treatment of the rights and interests acquired by third parties through prior use in good faith. Section 42(3) This Act does not affect or apply to contracts, licenses or other agreements entered into by traditional owners before the commencement of this Act in relation to the use of traditional knowledge or cultural expressions.

Section 43. Regulations Section 43(1) The Cabinet Secretary may make Regulations for the better carrying into effect of this Act. Section 43(2)(a) administrative requirements necessary for the implementation of the provisions of this Act; Section 43(2)(b) the procedure for applications of authorization for the exploitation of traditional knowledge and cultural expressions; Section 43(2)(c) fees to be paid by the National Competent Authority and the details of the distribution of part of the fees; Section 43(2)(d) mechanisms for fair distribution of benefits derived from usage of traditional knowledge and cultural expressions; Section 43(2)(e) preventive mechanisms aimed at protecting traditional knowledge and cultural expressions; Section 43(2)(f) forms to be used for matters requiring forms under this Act; and Section 43(2)(g) any other matters that are required or necessary be prescribed in order to give effect to this Act. Section 43(3) Whenever the Cabinet Secretary is required to make regulations or rules under this Act, the Cabinet Secretary shall make the regulations in consultation with the Council of Governors.

Section 44. Recognition of other laws Section In accordance with reciprocal arrangements, this Act may provide the same protection to traditional knowledge and cultural expressions originating in other countries or territories as is provided to traditional knowledge and cultural expressions originating in Kenya. .